Opinion
No. 4-448 / 03-2101.
August 26, 2004.
Appeal from the Iowa District Court for Sioux County, Gary E. Wenell, Judge.
Petitioner appeals from an order modifying the visitation provisions of a dissolution decree. REVERSED.
Lloyd Bierma of Oostra Bierma, P.L.C., Sioux Center, for appellant.
Shelley Horak of Horak Associates, Sioux City, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Tricia Lynn Gesink, n/k/a/ Tricia Lynn Kunkel, appeals from an order modifying the visitation provisions of decree dissolving her marriage to Jon Glen Gesink. She contends the district court erred in finding a substantial change in circumstance warranted a change in visitation, in modifying the visitation in such a way that it established a joint physical care arrangement, and in denying her maximum continuing physical and emotional contact with the children. She also contends the court erred in calculating child support. We reverse.
The captions of the parties' briefs denominate the respondent as "Cross-Appellant." However, no notice of cross appeal is in the appendix and the respondent makes no challenge to the trial court's ruling in his brief.
I. Background Facts and Proceedings.
Tricia and Jon were married in August 1993. They have two children; Derek, now eight years old, and Tanner, now six years old. The parties' marriage was dissolved in October 2000. Tricia was awarded primary care of the children. Because Tricia worked nights, Jon enjoyed frequent overnight visitation with the children, resulting in a thirty-five percent credit on the child support. When Tricia's employment changed to days, Jon's visitation was reduced and in May 2002 the decree was modified. Child support was increased from $400 per month to $586.26 per month.
In September 2002, Jon married Laura. Jon alleges that at that time, Tricia's attitude toward visitation changed. Jon contends that where he previously enjoyed liberal visitation with the boys, Tricia informed him they would adhere to the visitation schedule allowed in the decree.
On January 15, 2003, Jon filed an application to modify custody and visitation. Jon sought primary care of the children, and in the alternative, a modification of the visitation schedule to allow him more time with the boys. The district court found Jon had not proven a change in circumstance warranting modification of the children's physical care. However, the court did find a change in circumstance which warranted a modification of the parties' visitation schedule. The court modified the decree to allow Jon visitation with the children from 4 p.m. Friday to 6 p.m. Sunday in alternating weeks. In addition the court ordered visitation from June 10 until August 20 for Jon, with Tricia receiving visitation every Sunday from 1 p.m. until 4 p.m. Jon was also granted five days and nights of visitation with the children every Christmas holiday. The court found Jon was entitled to a twenty-five percent credit in child support because he received 127 days visitation. Accordingly, the court reduced Jon's child support to $440 per month.
Tricia filed a motion for enlargement pursuant to Iowa Rule of Civil Procedure 1.904(2), asking the court to correct its count of scheduled visitation for Jon. Tricia also requested additional summer visitation, and reinstatement of the original decree provisions regarding visitation. In its ruling, the court expanded Jon's weekend visits with the children from after school on Friday until the start of school Monday morning. The court changed Jon's summer visitation with the children to June 15 until August 15, with Tricia having visitation from 1 p.m. until 5 p.m. every other Sunday. Tricia was also granted visitation with the boys commencing from 6 p.m. on the second Friday of July until 6 p.m. the following Sunday. All other provisions of the court's previous order were deemed to remain in effect.
II. Scope of Review.
We review orders modifying the visitation provisions of a dissolution decree de novo. See Iowa R. App. P. 6.4. We have a duty to examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct.App. 1996). We give weight to the trial court's findings of fact, particularly when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.14(6) (g).
III. Visitation.
We first address Tricia's contention the court erred in finding a substantial change in circumstance warranting modification of the visitation provisions of the parties' dissolution decree.
To justify a change in visitation, the party requesting the change must show there has been a change of circumstances not contemplated by the trial court at the time the decree was entered. See In re Marriage of Rykhoek, 525 N.W.2d 1, 3 (Iowa Ct. App. 1994). The burden to change a visitation provision in a dissolution decree is substantially less than to modify custody. In re Marriage of Wersinger, 577 N.W.2d 866, 868 (Iowa Ct.App. 1998).
We conclude Jon has failed to prove a substantial change in circumstance not contemplated at the time the decree was entered. At the time the decree was entered, Tricia worked nights, allowing Jon substantial overnight visitation with the children. The dissolution decree states:
The parties agree that they will act reasonably in scheduling visitation for appropriate and fair contact. At the present time, overnight visits with the Respondent exceed 167 days per year. The parties hope to and will act in maintaining a reasonable flexible schedule as to visitation and contact.
In the event that they cannot agree on a schedule for visitation, then Jon shall have visitation as follows:
a. Jon shall have visitation with the children every other weekend from Friday night at 4:00 p.m. until Sunday afternoon at 5:00 p.m.
b. Jon shall have the right to have visitation with the children for three consecutive weeks during the Summer at a convenient time between June 15 and September 1 unless school starts before September 1 of each year, then it shall be until school starts.
c. Jon shall further be entitled to visitation on Father's Day, on his birthday and he will have alternate visitation on Christmas Eve, Christmas Day, New Years Day, Easter, Memorial Day, 4th of July, Labor Day, Thanksgiving, and each child's birthday.
The decree clearly anticipated the parties' visitation schedule at the time of dissolution would change. It even had contingent provisions if the parties could not agree. Most of the bases urged for modification of visitation are not directly related to the welfare of the children, but are rooted in the rancor between the parents. It cannot be said in this case that insisting on the schedule set out in the decree amounts to a change of circumstances. Accordingly, we reverse the district court's order modifying the parties' visitation schedule. Because the visitation schedule does not warrant a twenty-five percent child support credit, we reverse the portion of the district court's order modifying Jon's child support payments.